Stop Whining About Procedure

Of the all the ills that plague American public life, procedural whining is far from the most pernicious. But it might be the most annoying.

In the early Bush years, when congressional Republicans ran roughshod over established precedent and used hardball tactics to pass unpopular legislation, procedural whining was almost exclusively the domain of Democrats. Now, with Republicans in the minority, it is the right that has embraced procedural whining with gusto. Norman Ornstein of the American Enterprise Institute, a much-admired centrist who often writes on how to make our democracy work tolerably well, has written a short and sweet blog post outlining the hard-to-deny fact that a tactic House Democrats are using to pass health reform legislation—the self-executing strategy—was used over 35 times by House Republicans in the not-distant past, including at least one instance in which shrewd parliamentary strategist David Dreier, then chairman of the House Rules Committee, wanted to spare his congressional allies the indignity of voting for a legislative stinker.

One wonders if the rising popularity of the bill is connected to the fact that conservative opponents are banging on about congressional procedure instead of making a strong case against the bill and for a workable alternative.

And who can blame Dreier, or for that matter Nancy Pelosi? Politicians go into office to do things. This is a good reason not to like politicians: they are, with a few notable exceptions, power-mad Napoleons who will use any rhetorical tool at their disposal to gain still more power. Given that congressional Republicans were fairly egregious offenders in this regard, aiding the Bush administration in its efforts to centralize power in Washington, D.C. in many different policy domains, it's almost gratifying to see them present themselves as defenders of legislative humility. It creates the illusion of a genuine change of heart.

• Tunku Varadarajan: Obama In Fox Territory• Mark McKinnon: How Obama Wins in 2012The claim that Democratic efforts to use reconciliation or the self-executing strategy or deem and pass are illegitimate is a distraction from the still unsettled substantive debate we've had over the merits of the president's proposed health reform. As advocates of the health bill note, it has been growing in popularity, though criticisms from the right and the left continue to resonate with large numbers of voters. Opponents of the bill need to come to grips with the fact that it is a freight train, an almost unstoppable force that the president of the United States, arguably the world's most powerful individual, sees as both essential to his political survival and the kind of historic achievement that would validate his unlikely rise. One wonders if the rising popularity of the bill is connected to the fact that conservative opponents are banging on about congressional procedure instead of making a strong case against the bill and for a workable alternative. Legislative minorities are, as a rule, allergic to offering workable alternatives. It exposes you to ferocious criticism and fear-mongering. But we've now moved to the moment when the question of how to reform the reform is the relevant one.

In fairness, some of the procedural arguments raised by the bill's conservative critics are perfectly reasonable, not unlike some of the procedural arguments raised by moderates and liberals in the early 2000s. David Brooks has made a thoughtful and even moving case against abuse of the reconciliation process, arguing that it undermines the social bonds that make a legislative body flourish. Liberals wonder why Brooks, a scrupulously moderate and fair-minded columnist who tilts only slightly to the right, didn't raise these objections during the Republican ascendancy, forgetting that he was a champion of almost every bipartisan effort to reduce the red-hot temperature of our politics. Though it is certainly true that the case against reconciliation lines up against the interests of congressional Democrats, that doesn't make it somehow illegitimate. Rather, it reflects wishful thinking about what our politics should look like. The partisan turn in the Senate that David Brooks laments has been a fact of life for as long as control of Congress has been contested. When Republicans were a permanent minority, they had every reason to play nice, in the hopes of currying favor with Democratic congressional barons. Those days are over. Like it or not, we're living in the era of all-out partisan warfare, and it will only end when one party achieves total political domination. And that's not going to happen.

If congressional Democrats and Republicans can't be scolded into playing nice, have we lost all hope for bipartisan comity? There is a reason for hope. Because politicians are as self-interested as the rest of us, they will play nice if they buy the idea, which happens to be correct, that playing nice will yield dividends. When Tom Delay pushed for congressional redistricting in Texas just a few years after the state legislature settled on a map that reflected the 2000 Census, he was condemned for breaking precedent. Rather than wait until 2010 for another bite at the apple, he wanted to redraw the map to elect new Republican legislators. This reflected the broader zeal of Republicans across the country to perfect the art of partisan gerrymandering. At the time, Democrats, in Texas and across the country, screamed bloody murder. One could argue that Democrats would have been better served by adopting Delay's tactics in states where Democratic legislatures could pull off a similar feat and magically erase the districts of vulnerable Republicans. But there was no need for tit-for-tat. Sure enough, Republicans got their comeuppance in 2006, when dozens of finely-tailored Republican districts proved not quite Republican enough to survive a Democratic tidal wave. Had the partisan gerrymandering been a bit less blatant, it's at least possible that more Republicans would have held on.

The lesson is that while congressional Democrats are well within their rights to use reconciliation or the self-executing strategy or deem and pass or whatever else they find in the Tom Delay playbook, it's an approach that could come back to haunt them.

Reihan Salam is a policy advisor at e21 and a fellow at the New America Foundation.